SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Nchouki v The Queen
Citation:
[2018] ACTCA 28
Hearing Date:
7 May 2018
DecisionDate:
6 July 2018
Before:
Burns ACJ, Loukas-Karlsson and Bromwich JJ
Decision:
The appeals against conviction and sentence should be dismissed.
Catchwords:
CRIMINAL LAW – Appeal – Appeal against conviction – whether primary judge erred in finding electric control devices were designed to administer an electric shock on contact and neither items of medical equipment nor electric prods designed to be used exclusively with animals – whether primary judge erred in not including principles of law and findings of fact on which they relied
Appeal against sentence – whether primary judge erred in accumulation of sentences – whether primary judge erred in failing to take into account the purity of the illicit substances – whether primary judge erred in failing to give necessary effect to the principle of totality – whether primary judge erred by finding that the appellant was motivated by greed – whether primary judge erred in failing to consider alternatives to imprisonment – whether primary judge erred in failing to take appellant’s plea of guilty into account – whether primary judge erred by imposing manifestly excessive or unreasonable or plainly unjust sentence
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nchouki v The Queen [2018] ACTCA 28
Case
[2018] ACTCA 28
Decision Date
CaseChat Overview and Summary
Nchouki appealed against his conviction and sentence for offences relating to the possession of electric control devices and illicit substances. The appeal was heard by Burns ACJ, Loukas-Karlsson and Bromwich JJ of the Supreme Court of Queensland. The central dispute concerned whether the primary judge had erred in law in their findings regarding the nature and purpose of the electric control devices, and in their sentencing determination.
The legal issues before the appellate court included whether the primary judge had made an error in finding that the electric control devices were designed to administer an electric shock on contact, and were neither medical equipment nor electric prods intended for exclusive use with animals. Furthermore, the court was required to consider whether the primary judge had erred in their sentencing by accumulating sentences, failing to account for the purity of the illicit substances, not giving sufficient effect to the principle of totality, finding the appellant was motivated by greed, failing to consider alternatives to imprisonment, and not adequately taking the appellant's plea of guilty into account, leading to a manifestly excessive or unjust sentence.
The Court of Appeal dismissed the appeals against both conviction and sentence. The reasoning of the primary judge regarding the nature of the electric control devices was upheld, and the sentencing decisions were found to be sound, with no errors identified in the application of legal principles or factual findings.
Orders
Orders of the court
The appeals against conviction and sentence should be dismissed.